True Equality

Wednesday

Dec 25, 2013 at 12:10 PMDec 25, 2013 at 3:39 PM

When I first started practicing law in Utah about 20 years ago, I was embroiled in about seven very large religious constitutional law cases in federal courts around the country. What truly shocked me about Utah was the degree of religious bigotry written into the Utah Constitution. By this, I mean that Congress required the state of Utah to ban the religious practice of polygamy as a condition of statehood. This was a blatant example, not unique, of Congress outlawing a religious practice for no other reason than it was not consistent with Christianity as it was practiced in the rest of the country. This act of profound bigotry, which is one of the rare examples of Congressional violation of both the establishment clause and the free exercise clause, has been a thorn in the side of a not only LDS members but also a whole bunch of constitutional theorists.

This constitutional anomaly should remind us of something–marriage is a religious institution, but marriage in America has become another government program. And because marriage has become just another government program, the state cannot discriminate. But there is still something downright offensive about the entire concept of “state marriage.” You want a dog–you have to get a license. You want a wife–you have to get a license.

The problem with marriage in our country today is not that some people can marry and others can’t. The problem is that marriage is not the government’s business. Instead of expanding the franchise of marriage, it should simply be abolished. If folks want religious marriage, that’s their business, but not that of the government. And that’s an attitude that you’ll find in a lot of places in Utah.

I’m not surprised that a conservative federal judge in Utah would hand down a constitutional critique of marriage discrimination. And in Utah the fight is less between gays and straights than it is between divergent strands of conservatives–libertarian LDS members on one hand, and traditional conservatives on the other. Wyoming is a red state and is known as the Equality State because it was the first to allow broad women’s rights. Equally, Utah has been fighting for marriage equality for more than 100 years–the right to define one’s marriage as one sees fit and to arrange one’s life as one sees fit. If gay marriage is going to be acceptable in Utah, then laws against polygamy must fall. (of course, the real risk of gay polygamy is that it will be hard to tell the difference between a family and the average Catholic boys school)

If marriage is not going to be abolished, and if the court is going to recognize the right of all people to structure their own families, then we have to be prepared for what that means systemically. I’m not sure exactly what that is going to mean in practice, but I humbly suggest that it is wrong to view what happened in Utah as evidence that Utah “is the first red state to fall” as NPR reported this morning. In many places, particularly in Utah, marriage equality is a more conservative concept than one might expect.

Rob Meltzer

When I first started practicing law in Utah about 20 years ago, I was embroiled in about seven very large religious constitutional law cases in federal courts around the country. What truly shocked me about Utah was the degree of religious bigotry written into the Utah Constitution. By this, I mean that Congress required the state of Utah to ban the religious practice of polygamy as a condition of statehood. This was a blatant example, not unique, of Congress outlawing a religious practice for no other reason than it was not consistent with Christianity as it was practiced in the rest of the country. This act of profound bigotry, which is one of the rare examples of Congressional violation of both the establishment clause and the free exercise clause, has been a thorn in the side of a not only LDS members but also a whole bunch of constitutional theorists.

This constitutional anomaly should remind us of something–marriage is a religious institution, but marriage in America has become another government program. And because marriage has become just another government program, the state cannot discriminate. But there is still something downright offensive about the entire concept of “state marriage.” You want a dog–you have to get a license. You want a wife–you have to get a license.

The problem with marriage in our country today is not that some people can marry and others can’t. The problem is that marriage is not the government’s business. Instead of expanding the franchise of marriage, it should simply be abolished. If folks want religious marriage, that’s their business, but not that of the government. And that’s an attitude that you’ll find in a lot of places in Utah.

I’m not surprised that a conservative federal judge in Utah would hand down a constitutional critique of marriage discrimination. And in Utah the fight is less between gays and straights than it is between divergent strands of conservatives–libertarian LDS members on one hand, and traditional conservatives on the other. Wyoming is a red state and is known as the Equality State because it was the first to allow broad women’s rights. Equally, Utah has been fighting for marriage equality for more than 100 years–the right to define one’s marriage as one sees fit and to arrange one’s life as one sees fit. If gay marriage is going to be acceptable in Utah, then laws against polygamy must fall. (of course, the real risk of gay polygamy is that it will be hard to tell the difference between a family and the average Catholic boys school)

If marriage is not going to be abolished, and if the court is going to recognize the right of all people to structure their own families, then we have to be prepared for what that means systemically. I’m not sure exactly what that is going to mean in practice, but I humbly suggest that it is wrong to view what happened in Utah as evidence that Utah “is the first red state to fall” as NPR reported this morning. In many places, particularly in Utah, marriage equality is a more conservative concept than one might expect.